Monday, February 15, 2010

One thing that attracts me to the criminal law is the sheer romance of it all. Just me and my wits standing between my client and catastrophe. "Bring it on," I say, although in the well of the court, a judge's steely eyes replace the glare of high noon, and thinking fast is more important than shooting fast. I love going to court, and I love trial.

But I am not at all sure that I love it for the right reasons, and as Aristotle once oberved, virtue consists of doing things for the right reason, in the right way, to the right degree, at the right time. When I am crushed by a defeat there is something like vanity at work. I nurse my sorrows in the comfort of my home; my client goes to prison. Of all the sins, pride can be the most deadly.

I was reminded of this while reading a piece in Simple Justice this morning. Scott wonders whether a universal public defender service, a new mission of mine, might work a disservice to the quality of defense. Will government control or entanglement yield mediocre standards? Will public defenders for all accused of a crime result in a further stratification of legal services, with the rich capable of paying for dream teams and the rest of us settling for waking nightmares? Won't we all be "working for the man" in such a system?

I am not persuaded Scott's suspicions are well placed.

I am defending a man in a capital felony in Connecticut. Jury selection started January 4, 2010 and we are now in evidence. There have been about four weeks of court proceedings during this period. As a result of this commitment, I have been unable to try other cases. I am doing this a special public defender appointed by the State of Connecticut.

I do not do enough appointed defense work any more. Several years ago, I quit the federal Criminal Justice Act panel in protest over the impossible delays and procedures in submitting vouchers. A paralegal of mine was nearly in tears one day when a form had been bounced back from the federal court for a third time. It made no sense to spend dollars of staff time to chase dollars of federal reimbursement. "Take these forms and shove 'em," I said. It felt good saying that. But I was probably wrong to react so.

In the Connecticut case, I am paid the sum of $100 per hour. That may seem like a lot to the non-lawyers out there, but when you consider the staff whose wages I pay, the rent, the insurance, the dues and all the other miscellany that it takes to run an office, the truth is that I lose money at this rate. But it is the top government rate in Connecticut, and, more to the point, the Office of the Public Defender has not yet even winced when I have requested additional funds for investigators or experts. There is no way my client could have afforded to pay a fee and the costs of investigators and experts.

So am I now working for the man? Hardly. I am compensated, but not enough, and my client has an experienced lawyer supported by folks who know their business. No one is telling me how to defend. No one is placing restrictions on what I can and cannot do. As always, I am limited only by the evidence code and my imagination.

I realize the fallacy in my argument thus far: a capital felony is different. What about run of the mill felonies and misdemeanors. Would I be free to defend as I imagine necessary there? The truth, I suspect, is that non-marquee crimes yield non-marquee treatment, and the purse-strings might be a little tighter in such cases.

But shouldn't clients have the right to choose whether they want to be defended at the government's expense? Why do all the choices belong to the lawyers? I don't begrudge the white-shoe types in upscale markets, where big fees can and are paid. I simply don't see those sorts of clients. I live in a small state, where most folks struggle to pay their bills, as do I. There are a few high-rolling lawyers in Connecticut, who are rumored to require that clients take home equity loans and place liens on the property of clients. Both lawyer and client are free to do this if they like. Nothing in a universal public defender system would require people to forego that choice.

It remains my conviction, however, that all Americans should have the right to counsel at government expense when the government charges them with a crime. Prosecutors have virtually unlimited discretion to bring charges, and they are armed with staffs that include not just investigators, but experts from state forensic labs and the efforts of law enforcement at the local, state and national level. Few defendants faced with this arsenal are as well equipped. Were O.J. Simpson a member of the middle class, and not a member of the sporting pantheon, I have my doubts about whether he'd be free today.

Having a unviersal public defender service does not mean conscripting all members of the bar and making them government employees. It means that all members of the bar can apply to be appointed off a list of qualified defenders. It also means that making your way onto that list, and remaining there, requires demonstrating minimal competence in the difficult work of defending the accused.

Not all lawyers will seek such appointment. Those who don't want strings attached to what they do can compete for the private dollars swirling in the wake of the arrests of the affluent. But the middle class, those folks not indigent but without the means to hire a full defense team, won't be facing the resources of the state armed only with the wits of the lawyer they could afford.

Scott's undoubtedly a great lawyer. His services will no doubt remain in demand. That won't change, and neither will his ability to take whatever cases he likes at whatever fee he can afford to accept. The right to counsel for all isn't about the lawyer. It's about clients and the forcing the government to bear the costs of the decisions it makes.

It is grim satisfaction for lawyers to play John Wayne when their clients are behind bars.